Byrd v. Irmo High School, 24399

Citation321 S.C. 426,468 S.E.2d 861
Decision Date01 November 1995
Docket NumberNo. 24399,24399
Parties, 108 Ed. Law Rep. 1003 William A. BYRD, Sr., as Guardian for William A. Byrd, Jr., A Minor Under the Age of Eighteen (18), Appellant, v. IRMO HIGH SCHOOL and Lexington School District 5 of Lexington and Richland Counties, Respondents. . Heard
CourtUnited States State Supreme Court of South Carolina

J. Mark Taylor, of Kirkland, Wilson, Moore, Allen & Taylor, of West Columbia, for Appellant.

David T. Duff, Kenneth L. Childs, David E. Dubberly and Andrea E. White, all of Childs & Duff, of Columbia, for Respondents.

TOAL, Justice:

William A. Byrd, Sr., who brought this action on behalf of his minor son, appeals the

                circuit court's order granting Irmo High School's motion to dismiss. 1  We affirm

On August 26, 1994, while attending an Irmo High School football game on school grounds, William A. Byrd, Jr. ("Student") was stopped at approximately 9:15 p.m. by a security officer. Student was in tenth grade at Irmo High School ("Irmo"), which is situated in School District No. 5 of Lexington and Richland Counties. After briefly questioning Student, the officer called Irmo's associate principal Mary Bost to the scene. They both determined that Student's breath smelled of alcohol. Student admitted having consumed alcohol at approximately 6:15 p.m., prior to coming onto school grounds. Irmo's assistant principal Bob Rollings saw the questioning of Student by Bost and the officer, but did not speak with them at that time. Later in the evening, it was decided that Student should be suspended for ten days for coming onto campus after having consumed alcohol. Rollings contacted Student's parents over the weekend to inform them that the school would either uphold the ten day suspension or recommend expulsion.

On Monday, August 29, 1994, Student and his parents met with Bost and Rollings to discuss the incident. Student reiterated his story about having consumed alcohol prior to coming to the football game. The suspension was upheld for the period from August 29 through September 12, 1994, and this was confirmed by a letter from Rollings to Student's parents. On August 30, 1994, the parents appealed the suspension to Irmo's principal Anna Hicks. She upheld the suspension.

Student's attorney contacted the school district's office about the possibility of a further appeal. The office informed him that the district's policy did not allow for appeals of certain suspensions beyond the level of the school principal. 2 Student then initiated this action. On September 1, 1994, the circuit court issued a temporary restraining order vis-a-vis the suspension. The court dissolved this order on September 6. On the same day, Student petitioned the Supreme Court for supersedeas, which was denied.

Three days later, the circuit court granted Irmo's motion to dismiss under Rules 12(b)(1) and 12(b)(6), SCRCP, finding that the circuit court lacked subject matter jurisdiction to hear the appeal of the school officials' decision to suspend student and that the school officials had complied with procedural due process requirements in suspending Student.

Student appeals, arguing that the circuit court erred in:

1. holding that it had no subject matter jurisdiction over appeals involving suspensions of public school students;

2. holding that Irmo's suspension policy complied with due process requirements; and

3. granting Irmo's 12(b)(6) motion to dismiss, where the case presented a novel issue of law.

Since the filing of the appeal, Irmo has moved to have the matter dismissed. Before reaching the merits of this case, we will first address Irmo's motion to dismiss appeal.


In its motion to dismiss, Irmo argues that this Court lacks subject matter jurisdiction Before any action can be maintained, there must exist a justiciable controversy. Midland Guardian Co. v. Thacker, 280 S.C. 563, 314 S.E.2d 26 (Ct.App.), cert. denied, (1984). A justiciable controversy is a real and substantial controversy which is appropriate for judicial determination , as distinguished from a dispute or difference of a contingent, hypothetical or abstract character. Guimarin & Doan, Inc. v. Georgetown Textile & Mfg. Co., 249 S.C. 561, 155 S.E.2d 618 (1967). This Court will not pass on moot and academic questions or make an adjudication where there remains no actual controversy. Jones v. Dillon-Marion Human Resources Dev. Comm'n, 277 S.C. 533, 291 S.E.2d 195 (1982). Mootness has been defined as follows: "A case becomes moot when judgment, if rendered, will have no practical legal effect upon existing controversy. This is true when some event occurs making it impossible for [the] reviewing Court to grant effectual relief." Mathis v. South Carolina State Highway Dep't, 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973).

to hear this action because the issues have been rendered moot by events occurring after the filing of this appeal. It asserts that Student's suspension occurred in August and September 1994, that Student has since returned to school, and that the suspension has been cleared from Student's record.

However, there exist certain exceptions to the mootness doctrine. One exception allows courts to examine matters that are capable of repetition, yet evade review. South Carolina appellate decisions have not been entirely consistent in defining this principle. Some cases have held that under the exception, a court can take jurisdiction only if (1) the challenged action in its duration was too short to be fully litigated prior to its cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subjected to the action again. See Treasured Arts, Inc. v. Watson, 319 S.C. 560, 463 S.E.2d 90 (1995) (Davis Adv.Sh. No. 22 at 33); In re John Doe, 318 S.C. 527, 458 S.E.2d 556 (Ct.App.1995); In re Kaundra C., 318 S.C. 484, 458 S.E.2d 443 (Ct.App.1995); Howard v. Bibbs, 287 S.C. 636, 340 S.E.2d 566 (Ct.App.1986); In re Angela Suzanne C., 286 S.C. 186, 332 S.E.2d 542 (Ct.App.1985).

Other cases have taken a less restrictive approach in defining the exception, holding that a court can take jurisdiction, despite mootness, if "the issue raised is 'capable of repetition but evading review.' " In re Darlene C., 278 S.C. 664, 665, 301 S.E.2d 136, 137 (1983) (quoting Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)). In effect, this latter approach differs from the former in that it does not require a reasonable expectation that the same complaining party be subjected to the action again. See South Carolina Dep't of Mental Health v. State, 301 S.C. 75, 390 S.E.2d 185 (1990) (although specific case is moot, appeal allowed because it raises a question that is capable of repetition, but which usually becomes moot before it can be reviewed); Evans v. South Carolina Dep't of Social Servs., 303 S.C. 108, 399 S.E.2d 156 (1990) (although development renders case moot, controversy presents a recurring dilemma which the Court will address to clarify the law); Steinle v. Lollis, 279 S.C. 375, 307 S.E.2d 230 (1983) (issues are not moot given that the underlying dispute is one capable of repetition yet evading review). We now clarify that this less restrictive approach is the appropriate standard in determining the applicability of the evading review exception of the mootness doctrine.

Applying this standard, we find that even if it is assumed that the issue in the present case is moot, it is an issue that is capable of repetition, but which will evade review. Short-term student suspensions, by their very nature, are completed long before an appellate court can review the issues they implicate. Therefore, we conclude that the present case clearly fits into the evading review exception of the mootness doctrine, even if it were not otherwise appropriate for the Court to address this appeal.


As to the merits of this appeal, Student first contends that the lower court erred in Chapter 63 of Title 59 of the S.C.Code addresses the issue of student discipline. Section 59-63-220 provides: "Any district board may confer upon any administrator the authority to suspend a pupil ... from the school not in excess of ten days for any one offense...." S.C.Code Ann. § 59-63-220 (1990). The next section addresses the procedures related to suspension of students:

holding that circuit courts lack subject matter jurisdiction over appeals of suspensions of public school students. We disagree.

When a pupil is suspended from a class or a school, the administrator shall notify, in writing, the parents or legal guardian of the pupil, giving the reason for such suspension and setting a time and place when the administrator shall be available for a conference with the parents or guardian.... After the conference the parents or legal guardian may appeal the suspension to the board of trustees or to its authorized agent.

S.C.Code Ann. § 59-63-230 (1990) (emphasis added).

The above provision on suspensions is immediately followed by the statutory provision on expulsions:

The board may expel for the remainder of the school year a pupil for any of the reasons listed in § 59-63-210. 3 If procedures for expulsion are initiated, the parents or legal guardian of the pupil shall be notified in writing of the time and the place of a hearing either before the board or a person or committee designated by the board. At the hearing the parents or legal guardian shall have the right to legal counsel and to all other regular legal rights including the right to question all witnesses. If the hearing is held by any authority other than the board of trustees, the right to appeal the decision to the board is reserved to either party.... The action of the board may be appealed to the proper court....

S.C.Code Ann. § 59-63-240 (1990) (emphasis added).


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